from the this-post-brought-to-you-by-Facebook dept

For much of the year Facebook has been under fire for trying to dress up its attempt to corner developing nation ad markets under the banner of selfless altruism. Facebook's plan is relatively simple: through a program dubbed Free Basics, Facebook plans to offer developing markets a Zuckerburg-curated, walled garden version of the Internet, for free. Under Facebook's vision of this program, Facebook becomes the axle around which online access (and therefore online advertising) spins for generations to come, with the tangential bonus of helping low-income communities get a taste of what online connectivity can offer.

But many critics have complained that such a model gives Facebook too much control. Partner companies quickly dropped out of the program, unhappy that Facebook got to decide which content was "zero rated" (exempted from wireless usage caps) and which wasn't. Companies like Mozilla similarly argued that if Facebook was so keen on helping the poor, it should finance access to the actual internet. Others worried that having one company as a powerful gatekeeper not only poses problems for competition, innovation and speech, but helps create a central repository for subscriber data that would prove an irresistible target for hackers, governments, and oppressive regimes.

Facebook's response to all of this criticism was to call these concerns extremist, and to imply that if you're questioning Facebook's motives, you're hurting the poor.

The problem (for Facebook) is that as India spent much of the year trying to craft net neutrality rules, government regulators agreed with this criticism, suggesting that what Facebook was attempting was glorified collusion. This week, in a desperate attempt to sway the government toward Facebook's AOL-esque vision, the company decided it would be a good idea to use Facebook users to automatically spam the Indian government. Users who logged in were greeted with a message that automatically sent a message to Indian regulators lamenting a "small group of vocal critics" trying to derail free Internet access:

Of course that "small, vocal group of critics" is in reality quite large. And they're not looking to ban free Internet access from a billion people, they're just smart enough to realize that what developing nations need is real infrastructure connecting people to the actual Internet at lower prices, not a bastardized version of AOL. Facebook has consistently tried to argue that if you oppose its vision of a curated walled garden you're a villain preventing the poor from being connected. But that's nonsense, and it doesn't void the reality that Free Basics is a potentially harmful idea, dressed up to look like Mister Rogers.

Curiously, several Indian Facebook users who've received this message claim that by simply scrolling down the notice, Facebook sends your message to the government without your tacit approval:

Facebook also claims it "accidentally" spammed many users in the United States and the UK with the message, likely resulting in a few extra million "accidental" messages to Indian regulator Trai, which is busy fielding input from the public. You almost get the sense that Facebook's getting a bit desperate when it comes to pitching its plan for global ad market domination unprecedented international love and caring.

from the frivolous-lawsuits dept

Ah, class action lawsuits in action. If you want an idea of how the class action lawsuit process is often used for completely ridiculous purposes, just take a look at three separate lawsuits filed by a bunch of California lawyers. Each lawsuit is separate (and embedded below), and all three were pointed out by Eric Goldman. The lawsuits are against Twitter, Facebook and MySpace, and all are basically identical, other than the plaintiff. They're all attempts to file class actions against these companies for violating the Telephone Consumer Protection Act, which is supposed to block unsolicited contact to mobile phone lines. In all three cases, the plaintiffs were people who willingly turned on a feature in early April to receive text messages from each of these services. At some later date (probably a few days), each plaintiff chose to no longer receive those text messages, and responded to a message received by texting back "stop." As is quite typical, each of these services sent a message back to confirm that the person no longer wanted to receive such text messages. This is a completely standard procedure. And yet, these lawsuits claim that those messages broke the law, because the second the "stop" message was sent, any and all future messages, even the confirmation message, were unsolicited:

Plaintiff continued to receive text message notifications from Defendant. At
some point Plaintiff decided that he no longer wanted to receive text message
notifications on his cellular telephone from Defendant.
Plaintiff then responded to Defendant’s last text message notification by
replying “stop.”

At this point, Plaintiff withdrew any type of express or implied consent to
receive text message notification to his cellular telephone.

In response to receiving this revocation of consent, Defendant then
immediately sent another, unsolicited, confirmatory text message to Plaintiff’s
cellular telephone.

I can't see any of these lawsuits getting very far, and one would think there should be some sort of sanctions for setting up a situation like this solely for the purpose of filing a class action lawsuit. A confirmation message that the service provider is not to contact you again is hardly an unsolicited contact. It seems like it should be easy to argue that it was very much solicited by the individual issuing the "stop" command. That this law firm filed all three of these identical lawsuits at about the same time, also suggests that the message was very much solicited in that this law firm wanted to receive the confirmation message, solely for the purpose of filing a silly class action lawsuit (or three). The thing is, if this lawsuit goes anywhere, it'll create more of a hassle. Many of us like receiving a confirmation that we've been unsubscribed from something. This is clearly not the intent of the law, and one hopes that the courts will slap this down quickly.

from the this-dept.-is-checking-out dept

It looks all too familiar to me. And these messages are increasing in frequency in inboxes and social sites. What's going on here is that a fairly new kind of app, the "location check-in" service, is starting to get more traction among early adopters, and the usage is resulting in rapidly increasing "10-20" updates. Last week, the SXSW conference was ground-zero for this battle, as two of the hottest players, Foursquare and Gowalla, battled it out a year after both launching at the same event. Gowalla, behind for most of the year, gained steam at SXSW, winning a SXSW Web Award. Gowalla launched an updated app in Austin...and that's where my trouble began.

It seems that many of my social contacts have decided to try Gowalla this past week, and as a result, my Status Updates from my Contacts in LinkedIn, and "What's Hapenning" in Twitter are getting stuffed with spammy updates of every time one of them shows up at some coffee shop. This is the worst of social...the anecdotal "I'm brushing my teeth now" update that we all made fun of before we discovered the real value of Twitter.

What has happened is that these Check-In apps are degrading the average value of the messages my friends send. As a "follower", I tend to only follow people who put tight filters on their tweets, usually offering some deliberate thought about politics, telecom, or technology. But once these people connected Check-In apps to Twitter, their deliberate, pensive, witty tweets are being overrun by location spam. I'm not your mom, and I don't care where you are!

To be fair, the Check-In apps, by themselves, are not bad, and can be quite cool. I like being able to sign into locations, leave virtual notes there, leave pictures on a virtual board, rate the place, get discounts. Many of the uses are fun, informative, and even whimsical. I like the goofy competition for "being the mayor" of the bubble tea shop. If you have no idea what I'm talking about, Shane Snow over at Mashable describes the leading apps well, including a head-to-head feature chart. So while the apps can be engaging, it's just the optional connection of these apps to automatic outbound messages that is problematic and can generate too much chaff.

Not only can automated messages add up in quantity, but they can occasionally send the wrong signals, or be cause for embarassement. On one funny occasion, my wife visited someone at the hospital, and she turned on Foursquare. Because of the lingo of these apps, her Facebook page and friends were pushed the message "Liz just checked-in @ Kaiser Permanente Medical Center - Walnut Creek". Now, much as we liked the free flowers, we're not sure she was sending the right signals.

Like email and spam in the 90s, the good-quality, human written missives are being substituted by pointless, automated messages. It's far easier for a server to crank me out a message than for a person to type out 140 characters, so I predict this unfortunate trend to continue. An increasing number of status updates will be coming - not from your friends - but from machines they've allowed to send on their behalf. Too bad. I wanted to stay in touch with my friends, not their software.

from the misusing-computer-fraud-law dept

There's just something about the Computer Fraud and Abuse Act -- the "anti-hacking" law in the US -- that seems to leave it open for abuse in lawsuits. This is the law that was used to convict Lori Drew. Even though the judge eventually tossed the ruling, it showed how the broadly-worded law could be applied in dangerous ways. Still, at least some attempts at twisting the law aren't getting very far. For example, a woman in Minnesota tried to use the law against a company that sent her spam text messages she never requested, and discovered that in order to bring a case under a law, you have to actually show that the law was broken:

Plaintiff brings three possible claims: (1) a claim for obtaining information from her phone; (2) a claim for transmitting information or code through her phone; and (3) a claim for "accessing" her phone.

Information Claim: The court rejects the information-based claim because there's no information that WSOD allegedly obtained through accessing the plaintiff's phone. Plaintiff analogizes to websites and argues that any time someone sends a message to a mobile phone, information is "obtained" in the same way that information is obtained any time someone accesses a website. The court rejects this analogy, finding that "there is a fundamental difference between viewing websites and communicating with wireless devices such as cell phones by sending text messages." Even if the transmission of an unwanted text message somehow resulted in the "obtaining of information," the court concludes that there's no loss as a result of defendant having obtained the information.

Transmission Claim: The transmission claim requires plaintiff to allege that WSOD caused the transmission of code or information and as a result "intentionally caused damage without authorization" to plaintiff's device. The complaint fails on both counts. There wasn't a credible allegation of damage (there was no allegation of impairment to the machine) or of WSOD's intent to cause the damage.

Access Claim: The court rejects the access claim since plaintiff does not adequately allege that the unauthorized access was intentional.

So, nice try, but no dice. Someone sending unsolicited text messages to your mobile phone may be annoying (and potentially illegal under other laws), but it's not hacking under the Computer Fraud and Abuse Act.

from the this-is-a-good-thing dept

Via Michael Scott we learn that the 9th Circuit Court of Appeals has found that the Telephone Consumer Protection Act (TCPA) also applies to unsolicited text messages. The TCPA covers certain kinds of commercial marketing over telephones, and has a rule against the use of "automatic telephone dialing systems," but it wasn't clear if text messaging was an automatic telephone dialing system. The court has now said yes.

Separately, the case looked at whether or not agreeing to a basic terms of service also represented "express consent" which is needed under the TCPA. In this case, the woman had purchased a ringtone, but did not believe she had consented to commercial text messages. In buying the ringtone, the woman agreed to an extremely broadly worded terms of service that was probably purposely designed by lawyers to cover a wide swath of potential other things -- such as allowing the company to let others market things to the user. The question was whether or not other companies, who purchased the phone number from the ringtone company, could then market to the woman. The court here finds that dubious as well, noting that "express consent" is "[c]onsent that is clearly and unmistakably stated," which the court feels was not the case here, since the consent was only for the ringtone company to market messages, not anyone else (even though the marketing company -- in this case Simon & Schuster -- noted that the text message was "powered by" the ringtone company): "Thus, Satterfield's consent to receive promotional material by Nextones and its affilliates and brands cannot be read as consenting to the receipt of Simon & Schuster's promotional material."

This ruling isn't the final say on the matter -- as the appeals court was just reversing a lower court's summary judgment, and telling the lower court that it needs to actually go further in paying attention to the case. However, the points raised above are certainly important ones that I imagine will start showing up in other cases as well. Finally, it's also worth pointing out that the defendant in this case is Simon & Schuster, rather than Nextones. This does raise some interesting questions. Simon & Schuster believed that it was purchasing the right to contact these phone numbers legitimately via a marketing company partnered with Nextones. It had no idea that the "agreement" may be faulty, but it may now be liable for breaking the law. If that moves forward, you would have to think that Simon & Schuster has an argument to sue either Nextones or the marketing company it worked with for misrepresenting the "explicit consent" on those numbers.

from the would-you-like-to-extend-your-size-to-160-characters? dept

The problem of spam text messages sent to mobile phones has been a significant one in many countries, though it hasn't reached epidemic proportions (yet) in the US. Operators have done a pretty good job of stopping the messages from getting delivered, while the cost and difficulty of sending them has also been a useful obstacle. Some, however, still manage to get through. Over in India, the government has extended its do not call list to cover commercial text messages as well, and has mandated that operators must add some tracking information to the messages so regulators can track down their senders. In the US, it's illegal for telemarketers to call cell phones, while the not-particularly-effective CAN-SPAM act makes it illegal to send spam email to phones. At least one court has ruled that SMS spam is covered by the law banning telemarketing calls to mobiles, but it would be nice to see cell phones get some extra protection from spam -- especially since it often brings some financial pain as well as annoyance.

from the redefining-spam dept

For the most part, mobile operators have been good about trying to prevent SMS text spam, but it appears that AT&T has gone in the other direction. It's actually spamming people. Apparently it sent a text message promoting the TV show American Idol to anyone who had voted in past American Idol contests or anyone that AT&T considered to be a "heavy texter." I can almost (but not quite) understand contacting former voters. But randomly targeting other "heavy texters" is simply pure spam.

But that's not the way AT&T sees it. In a statement that entirely redefines spam, a spokesperson said that it wasn't spam because they didn't charge people to receive the message. He also claimed it was no problem because people could opt-out of future messages. This shows an incredible (but all too typical for AT&T) tone deafness to the issue. Email spam is already quite annoying. But text messaging spam takes it to an entirely more ridiculous level by proactively interrupting what a person is doing, no matter where they are. At least email spam can be compartmentalized to when you're actually checking your email (and, these days, can be pretty effectively filtered). Text messaging is a lot more intrusive, and for AT&T to claim that this is somehow "okay" because the TV show is "built on texting," is simply ridiculous.

from the pull,-not-push dept

For years, we've been trying to convince advertisers that mobile advertising needs to be about "pull" rather than "push" advertising. Since mobile users are "on the go" and often busy with something else, interrupting them with their mobile phone is going to be seen as a tremendous intrusion, often pissing off most recipients. Instead, the focus should be on setting up situations where the ads are effectively "called" by the user who is specifically looking for something (think Google ads, rather than pop up ads). For example, having a billboard that offers someone something if they punch in a code on their phone. Or, perhaps, making it easy for someone to proactively check if there are discounts at nearby coffee shops -- rather than simply bombarding them with offers as they pass-by coffee shops.

Unfortunately, it looks like some advertisers are only getting half of the message. While they understand the importance of there being some kind of "call to action" by the user to initiate any kind of advertising relationship, many seem to think that after that initial call to action, users are more open to receiving ongoing communications. That's unlikely to be true -- as many users may want a particular type of communication at one time, but will not be in the mood to get something similar the next day when they're in a rush to get somewhere. The companies pay lip service to not bothering people by saying things like: "If there is no response after several times, the phone will stop sending alerts." However, by that point, you've already annoyed the person "several times" after they only opted-in to hear what you had to say once. It's hard to see how that's beneficial at all.

from the it-took-them-this-long? dept

For many years, there's been talk about the mobile advertising opportunity, with some advertisers practically drooling over the possibility of sending ads directly to users' mobile phones. It wasn't that long ago that the standard example used at many conferences and trade shows was how you'd be walking by a coffee shop and it would send you a text messaging offering you 20% off on a cup of coffee or a free bagel or something. Of course, that ignored the fact that probably 99% of the people hit with that message would consider it intrusive spam, especially if they were on the go. Luckily, though, some early complaints about such services (and the general anger towards spam, popup ads and other intrusive ads) has made it so many mobile advertisers have realized the focus needs to be on pull, rather than push. That is, as people are using mobile phones more and more for local information, there's tremendous value in putting advertisements that might be relevant to users as they're searching -- rather than simply bombarding them at random. The article does note some experiments with more intrusive push advertising, but set up in a way where the end users have a lot more control and say over the conditions under which they actually receive ads, in an attempt to keep them relevant. For once, it's good to hear of some restraint in the ad industry. Hopefully, it remains.